HKSAR v. KELVIN Y. C. LEUNG AND ANOTHER

HCMA 309/2020 and HCMA 366/2020

[2022] HKCA 1414

HCMA 309/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 309 OF 2020

(ON APPEAL FROM ESS NO. 39884 OF 2016)

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HCMA 366/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 366 OF 2020

(ON APPEAL FROM ESS NO. 39884 OF 2016)

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____________________

(Heard together)

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JUDGMENT

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Hon Poon CJHC (giving the judgment of the Court):

A. Introduction

1.  On 25 April 2016 at about 7:45 pm, the defendant, Thapa Kamala, was hit by a taxi (“Taxi 1”) on Tai Tam Road near the American Club.  That stretch of Tai Tam Road was a two-lane two-way traffic divided in the middle by a continuous solid white line on the side of the northbound lane and a broken white line on the side of the southbound lane, with a speed limit of 50 km/h.  Right before the accident, the defendant was crossing the road at the rear of a stationary taxi (“Taxi 2”) on the southbound lane.  Taxi 1 was travelling on the northbound.  The CCTV camera installed at the American Club captured the course of the accident but, because of other objects blocking the view, did not show the moment of impact or which lane Taxi 1 was at the point of impact (“the CCTV Footage”).

2.  The defendant sustained serious personal injuries and was hospitalized until 20 June 2016.  On 28 May 2018, she commenced a personal injury action in the High Court against the driver of Taxi 1 for damages[1] (“the HCPI Action”).

3.  By a summons dated 10 May 2017, the defendant was prosecuted for the offence of negligently endangering her own safety as a pedestrian, contrary to section 48 of the Road Traffic Ordinance.[2] She pleaded not guilty.  Her case was that Taxi 1 was speeding, and unlawfully crossed the middle dividing line into the southbound lane and hit her.  The case was set down for a 2-day trial pursuant to the parties’ agreed estimate.  It commenced before Deputy Special Magistrate Ho Lai-ming (“the Deputy Magistrate”[3]) on 10 January 2018.  As it turned out, the trial lasted for 91 days.[4]

4.  On 14 October 2019, the Deputy Magistrate returned the verdict acquitting the defendant.  She applied for costs under section 3 of the Costs in Criminal Cases Ordinance[5] (“CCCO”); and the prosecution applied under section 18 of the CCCO for wasted costs against the defendant’s legal representatives, Mr Kelvin Leung of counsel and Mr How Chun Fai, the sole proprietor of Messrs How & Co (“HC”).  By a ruling delivered on 6 October 2020, the Deputy Magistrate refused the former but allowed the latter and ordered Mr Leung and Mr How to pay wasted costs in the respective sum of HK$296,481 and HK$325,718.  The defendant, Mr Leung and Mr How appealed, raising numerous grounds of appeal including apparent bias on the part of the Deputy Magistrate.

5.  These magistracy appeals were initially set down before Barnes J.  By an order dated 13 January 2021, she ordered them to be transferred to the Court of Appeal for determination pursuant to section 118(1) of the Magistrates Ordinance.[6]  She was correct in doing so because what arose from the proceedings below goes well beyond the scope of an ordinary magistracy appeal.  Something of fundamental importance in terms of the administration of justice is at stake.

6.  Criminal justice is administered in the public interest.  And it is in the public interest that criminal trials are conducted fairly, efficiently and expeditiously from beginning to conclusion.  The court, the parties and their legal representatives, though with different roles to play, all share the enormous responsibility of ensuring that the wheels of criminal justice run in such a way.  Anything less will compromise the public confidence in the criminal justice system. 

7.  To our dismay, a simple, straightforward 2-day case involving a very minor traffic offence had evolved into a leviathan of a 91-day trial spanning nearly 2 years, spawning in the course multiple judicial reviews and an application for leave to appeal to the Court of Appeal, only to be followed after verdict by a further 8-day hearing on costs stretching for another year.  The way in which the trial meandered sluggishly to its eventual conclusion, the fragmentation of the trial process, the unwarranted delays and disruptions, the constant procedural distractions, the prolix and unnecessary cross-examination, the frequent digress from the real issues to peripheral matters, the scandalous exchanges that the Deputy Magistrate had with Mr Leung and Mr How, fueled by mutual disrespect and animosity, and the disproportionate use of judicial time and resources, are unseen in the long and combined experience of this Court.

8.  The lamentable procedural history below had seriously affected the public confidence in the criminal process.[7] The public is justifiably entitled to expect this Court to address the matter publicly, in a judgment such as this.

B.      A brief procedural history

9.  In approaching our task, we have in rather painstaking detail gone through the materials placed before us and sifted through the record of proceedings.  For reference, we set out below a table explaining which calendar date corresponds to which day of the proceedings before the Deputy Magistrate:

Day 1	10 January 2018
Day 2	11 January 2018
Day 3	17 January 2018
Day 4	22 January 2018
Day 5	23 January 2018
Day 6	11 April 2018
Day 7	20 April 2018
Day 8	27 April 2018
Day 9	2 May 2018
Day 10	8 May 2018
Day 11	4 September 2018
Day 12	5 September 2018
Day 13	6 September 2018
Day 14	12 September 2018
Day 15	13 September 2018
Day 16	14 September 2018
Day 17	27 September 2018
Day 18	28 September 2018
Day 19	2 October 2018
Day 20	3 October 2018
Day 21	5 October 2018
Day 22	10 October 2018
Day 23	11 October 2018
Day 24	18 October 2018
Day 25	23 October 2018
Day 26	24 October 2018
Day 27	25 October 2018
Day 28	31 October 2018
Day 29	1 November 2018
Day 30	2 November 2018
Day 31	7 November 2018
Day 32	8 November 2018
Day 33	9 November 2018
Day 34	12 November 2018
Day 35	17 December 2018
Day 36	24 December 2018
Day 37	27 December 2018
Day 38	28 December 2018
Day 39	31 December 2018
Day 40	2 January 2019
Day 41	7 January 2019
Day 42	8 January 2019
Day 43	9 January 2019
Day 44	31 January 2019
Day 45	11 February 2019
Day 46	12 February 2019
Day 47	14 February 2019
Day 48	15 February 2019
Day 49	18 February 2019
Day 50	21 February 2019
Day 51	22 February 2019
Day 52	1 March 2019
Day 53	4 March 2019
Day 54	6 March 2019
Day 55	7 March 2019
Day 56	11 March 2019
Day 57	13 March 2019
Day 58	14 March 2019
Day 59	15 March 2019
Day 60	18 March 2019
Day 61	20 March 2019
Day 62	21 March 2019
Day 63	12 April 2019
Day 64	15 April 2019
Day 65	16 April 2019
Day 66	18 April 2019
Day 67	8 May 2019
Day 68	23 May 2019
Day 69	3 June 2019
Day 70	4 June 2019
Day 71	6 June 2019
Day 72	10 June 2019
Day 73	14 June 2019
Day 74	17 June 2019
Day 75	18 June 2019
Day 76	19 June 2019
Day 77	20 June 2019
Day 78	21 June 2019
Day 79	24 June 2019
Day 80	25 June 2019
Day 81	26 June 2019
Day 82	27 June 2019
Day 83	28 June 2019
Day 84	3 July 2019
Day 85	4 July 2019
Day 86	5 July 2019
Day 87	9 July 2019
Day 88	10 July 2019
Day 89	11 July 2019
Day 90	29 August 2019
Day 91	14 October 2019
Day 92	20 December 2019
Day 93	23 December 2019
Day 94	18 May 2020
Day 95	19 May 2020
Day 96	21 May 2020
Day 97	26 May 2020
Day 98	3 June 2020
Day 99	6 October 2020

10.  The prosecution was represented by Mr Francis Haddon-Cave, counsel on fiat for Days 1 to 16 and upon his retirement from the Bar, by Mr Steven Kwan thereafter.  The defendant was represented by Mr Leung upon the instructions of HC for Days 1 to 40.  Mr Leung did not appear on Days 41 to 43 and was formally discharged on Day 44, upon which Mr How took over the conduct of the defence.

11.  The time for different stages of the proceedings was spent as follows:

(1)  Days 1 to 38: prosecution case

(2)  Days 38 to 39: no-case submissions

(3)  Day 40: ruling of a case to answer and commencement of defence case

(4)  Days 41 to 44: legal representation of the defendant

(5)  Days 44 to 89: continuation and conclusion of the defence case

(6)  Day 90: closing submissions

(7)  Day 91: verdict

(8)  Days 91 to 98: submissions on the costs applications

(9)  Day 99: ruling on costs

12.  Serious problems impeding the trial process began to emerge from the very early stage of the proceedings.

C.      The problems

C1.    Days 1 to 40

13.  According to the pre-trial questionnaire, four main issues were identified for trial:

(1)  Whether Taxi 1 was in excess of the speed limit before the collision;

(2)  Whether Taxi 1 had crossed the centre line of the road when it collided with the defendant;

(3)  Whether the defendant had stepped on the northbound lane;

(4)  Whether the defendant negligently endangered her own safety.

The prosecution and the defence would each instruct one expert.

14.  The prosecution called 3 witnesses, the driver of Taxi 1 (PW1), a government forensic scientist who conducted traffic accident reconstruction for the accident (PW2), and PC 4374 who obtained a cautioned statement from the defendant in Mr How’s presence on 7 October 2016 (PW3).

15.  PW1 testified that at the material time he was driving along the northbound lane of Tai Tam Road at about 30 km/h.  As he drew level with the boot of Taxi 2, a dark shadow dashed out from the offside front of Taxi 1 and the boot of Taxi 2, resulting in the collision.  Before the collision, he had stayed in his lane and had not crossed the solid white line on the northbound lane.  He denied that he was driving in excess of 50 km/h; that he had to steer towards his right-hand side when passing a public light bus stopped at the left-hand side of his lane; and that because of that he crossed the solid white line and hit the defendant.  PW1’s evidence was completed before lunch.  He was recalled for some short questions on Day 3.

16.  PW2 commenced his evidence right after PW1 on Day 1.  His expertise was not challenged.  He testified that after conducting a traffic accident reconstruction of the incident, he concluded that Taxi 1 was travelling at about 49 km/h.  In response to the Deputy Magistrate’s question, PW2 opined that the impact location was on the northbound lane, acknowledging that it was not mentioned in his expert report.  Cross-examination then followed, which lasted for 23 days[8] and concluded on Day 35.

17.  Significantly in terms of the strength of the prosecution case, PW2 agreed under cross-examination on Day 1 that he could not exclude the possibility that the front offside wheel of Taxi 1 was on the solid line very shortly before the collision[9] if it was actually already travelling slightly towards the direction of the centre line even though it was very unlikely.  More importantly, PW2 further agreed on Day 3 that there was a possibility of Taxi 1 passing the centre line if its tyres had turned five to ten degrees.

18.  PW3 began his evidence on Day 36 in the afternoon.  The main purpose of his evidence was to adduce the defendant’s cautioned statement.  He was however subject to lengthy cross-examination bringing his evidence to a close on Day 38.

19.  The Deputy Magistrate heard the no-case submissions on Days 38 and 39 and ruled that there was a case to answer on Day 40.

20.  The progress of the first 40 days was significantly hindered and unnecessarily prolonged for a number of reasons.

C1.1  Bickering between the Deputy Magistrate and Mr Leung

21.  The Deputy Magistrate and Mr Leung engaged in bickering from the very early stage of the trial which continued until Day 40 when he last appeared before her.  Below are some ready examples:

(1)  On Day 2, in the morning, the Deputy Magistrate said she had observed that Mr Leung had thrown things on the table and at Mr Haddon-Cave and gave him warnings.  At one point, the Deputy Magistrate commented it was the fourth time Mr Leung had thrown things and said it was the last warning.  In the ensuing arguments, Mr Leung denied and said that the court’s CCTV could be checked.  He requested to proceed with the trial but the Deputy Magistrate pressed him on whether he wanted to check the court’s CCTV. She allowed him to continue with PW2’s cross-examination only after he said no.  In the rest of the proceedings, the Deputy Magistrate kept referring back to those “throwing things” incidents.

(2)  In the same morning, the Deputy Magistrate and Mr Leung engaged in a lengthy exchange, which took up about 19 pages of the transcripts, on a matter arising from cross-examination. Mr Leung at one stage said that he would like to move on with the trial as he had already wasted a lot of time by asking irrelevant questions.  Properly understood in context, it was a veiled retort to the Deputy Magistrate’s comments and interventions from his perspective that he had asked too many irrelevant questions.  The Deputy Magistrate seized upon and made note of that remark, to which Mr Leung clarified that he was “speaking out of courtesy”. Later in the proceedings, the Deputy Magistrate repeatedly referred back to his remark, prompting repeated clarifications by Mr Leung.

(3)  On Day 3, in another exchange following an objection by the prosecution, the Deputy Magistrate and Mr Leung, not for the first time, happened to talk over each other.  The Deputy Magistrate then described Mr Leung as “ignorant”, not realizing that she had not finished speaking, and directed him not to talk before she said “full stop”.  For some time thereafter, she adopted a practice of saying “full stop” before letting Mr Leung speak.

22.  The bickering, sometimes childish, sometimes bitter, had hugely disrupted the proceedings and prevented the Deputy Magistrate and Mr Leung from using the time meaningfully. With tension and mutual animosity mounting, it eventually escalated into a most personal insult levelled by Mr Leung against the Deputy Magistrate on Day 40. They were then embroiled in another exchange arising from an objection by Mr Kwan in DW1’s evidence-in-chief.  In response to her comment that the defence had not challenged PW2’s expertise, Mr Leung said: “I am afraid I have to use this words: Are your insane?  Sorry.”  After the Deputy Magistrate said that she would note it down, Mr Leung withdrew the remark.  The Deputy Magistrate then said she would consider invoking section 99 of the Magistrates Ordinance.[10]

23.  Mr Leung’s crude remark, although withdrawn almost immediately but without any apology, is most unbecoming.  Viewed against the continuous bickering preceding it and the context in which it was made, it was more than a personal insult.  It amounted to a frontal attack against a presiding judicial officer in ongoing proceedings in open court, thereby undermining the public confidence in the judicial authority that the Deputy Magistrate represented.  As such, we consider it a very serious disciplinary matter that the Bar Association should look into.  Mr Leung said that the Deputy Magistrate was very difficult to deal with.  With respect, when what transpired between bench and bar is viewed objectively, the same can be said about Mr Leung.  In any event, it does not detract a bit from the impropriety of his conduct.

24.  By engaging in such bickering, the Deputy Magistrate and Mr Leung had abandoned the decorum and professionalism required of them in conducting the proceedings in an objective, courteous and dignified manner.  It threatened to bring the criminal process into disrepute, rendering the considerable wastage of judicial time, which is already a serious matter, a collateral damage.

C1.2  Imposition of bail on the defendant and the 1^st JR Application

25.  On Day 2, the defendant was about 5 minutes late when she turned up for the hearing in the afternoon. At the end of that day, the Deputy Magistrate put the defendant on bail for HK$100 to secure her attendance at the next hearing, rejecting Mr Leung’s explanation that she had just gone to the toilet and it was unnecessary to impose bail.

26.  On 26 January 2018, the defendant applied to the Court of First Instance for leave to judicial review against the bail (“the 1^st JR Application”).  Leave was initially refused on 10 April 2018[11] but was allowed by the Court of Appeal on 12 October 2018.[12]  The bail was later quashed by a consent order on 4 April 2019 in the substantive judicial review on the joint understanding that the Secretary for Justice, who had substituted the Deputy Magistrate, agreed to the consent order without accepting that she lacked jurisdiction to impose the bail.[13]

27.  In allowing the defendant’s appeal and granting her leave to apply for judicial review, Barma JA pointed out that, having regard to well-settled authorities, it is at least reasonably arguable that the Deputy Magistrate did not have jurisdiction to impose the bail on the defendant as she might appear before the court by counsel.[14]  We respectfully agree with his view.  Leaving jurisdiction aside, the Secretary for Justice’s agreement to have the bail quashed, albeit without making any concession on lack of jurisdiction, speaks volume of the appropriateness and utility of the bail from the prosecution’s perspective.  Now that the matter had gone a full circle, one might reasonably query the wisdom in imposing bail to secure the defendant’s presence in the first place.  Based on our judicial experience, a suitably worded reminder asking the defendant to be punctual would have more than sufficed.

28.  The Deputy Magistrate had over-reacted to a very minor and entirely excusable slip on the defendant’s part.  It had exacerbated the tension between her and Mr Leung.  It served no useful purpose for expediting the trial progress other than creating a recipe for further satellite applications and disruptions.

C1.3  The 1^st Recusal Application

29.  On Day 4, the defendant applied for the recusal of the Deputy Magistrate on the ground of apparent bias as shown by (1) the imposition of the bail; (2) her disrespect and hostility towards Mr Leung who was humiliated, threatened and unduly pressured; and (3) her excessive and inappropriate interruptions during PW2’s cross-examination and entering into the arena by asking PW2 questions which should not have been asked and answering questions for him (“the 1^st Recusal Application”).  The prosecution saw no reasons for recusal although it is not entirely clear from the materials including the transcripts if Mr Haddon-Cave actually opposed it.  Submissions took 4 days to finish and on Day 8, in the morning, the Deputy Magistrate refused the Application.

C1.4  Repeated applications for adjournment & the 2^nd JR Application

30.  In the course of the proceedings, Mr Leung made repeated applications for adjournments:

(1)  on Day 8 immediately after the Deputy Magistrate refused the 1^st Recusal Application pending the result of the 1^st JR Application;

(2)  on Day 9 on the ground of his illness;

(3)  on Day 11[15] pending the determination of the appeal in respect of the 1^st JR Application;

(4)  on Days 17 to 19 on the ground of his injury; and

(5)  on Day 21 on the ground of his illness.

Only the applications on Days 9, 17 and 21 were granted.  The rest were all refused.

31.  In adjourning the trial, there were more than once where the Deputy Magistrate refused to accommodate Mr Leung’s diary.  On one such occasion, HC on 3 May 2018 wrote to the Principal Magistrate asking him to direct the trial to be resumed on another date to accommodate Mr Leung’s diary, which was duly declined on 4 May.  But HC did not desist and wrote further in vain to the court.  HC’s attempt to undo the Deputy Magistrate’s order by inviting the Principal Magistrate to intervene, which he had no power to do in his administrative capacity, was wholly unprofessional.

32.  Applications for adjournments are ordinarily simple and short matters.  However, there were at least three occasions where considerable time had been spent apparently with no good reasons:

(1)  the application on Day 8 started in the morning but lasted until the afternoon;

(2)  the application on Day 11 took up the whole morning in which Mr Leung said that depending on the outcome of the appeal, there could be another application of recusal application as the Deputy Magistrate might be a potential defendant in a claim based on misfeasance in public office;

(3)  the application on Day 18 took up much of the morning.

33.  On Day 16, at the end of the hearing, the Deputy Magistrate adjourned the case to 27 September for part-heard, despite Mr Leung’s objection that he would not be in Hong Kong. Such a simple matter took up a good deal of time (with about 50 pages of transcripts).  On 18 September 2018, the defendant mounted an application for judicial review against the Deputy Magistrate’s said decision (“the 2^nd JR Application”).  It was refused by Chow J (as he then was) on 24 September 2018.[16]

C1.5  A snap shot of how judicial time was wasted

34.  What happened on Day 10 provides a snapshot of how judicial time was typically wasted.

35.  The hearing on that day started at 9:54 am, broke at 12:52 pm for lunch, resumed at 2:32 pm and finished at 2:43 pm.  The transcripts run to a total of 73 pages.  Only about 7 pages are PW2’s cross-examination.  The rest are exchanges mostly between the Deputy Magistrate and Mr Leung on various matters which, littered by inappropriate language with a strong undercurrent of mutual disrespect, did not really advance the cross-examination or progress of the trial.  PW2 was released before the lunch break after the Deputy Magistrate observed that “his evidence can’t go on today”, without any apparent reason why he could not continue after lunch.  In the afternoon, after discussion with counsel, the Deputy Magistrate adjourned the case to 11 July 2018 for part-heard with 13 and 16 July reserved.  That was of course a gross underestimate of the time required to finish PW2’s cross-examination, let alone the trial.

36.  In short, no meaningful progress was made; the Deputy Magistrate and Mr Leung continued with the bickering sometimes bordering on mockery in their exchanges over various matters most of which were peripheral; and Mr Haddon-Cave, with no criticism intended, was unable to render much assistance.

37.  Moreover, at one point, the Deputy Magistrate said that the maximum fine of the offence, that is, HK$2,000 had nothing to do with the time taken to finish the trial.  She was responding to Mr Leung’s remark about the amount of fine in relation to the progress of the trial so far.  Very tellingly, she said:

“I’m not going to discuss with you whether, ‘We should consider the maximum fine as to whether we should take seven years to finish …’ Proper time use has nothing to do with maximum fine.”

The Deputy Magistrate seemed to be suggesting that despite the triviality of the offence, the trial could continue as long as it took.  With respect, it was a fundamental misconception.  As often mentioned, time is not unlimited.  The court must use its judicial time responsibly and proportionately.  In the present case, the triviality of the offence is a highly relevant factor in allocating the time for the trial appropriately.  Partly because of such lack of proportionality, the Deputy Magistrate failed to properly manage the progress of the trial, which contributed to its undue prolongation.

38.  There are too many other incidents of wastage of judicial time.  Just to name one example, on Day 24, Mr Leung applied for the defendant to be excused from attending the trial as she was suffering from pain.  (It should be remembered that she had sustained serious personal injuries from the accident.)  Submissions lasted for the whole morning when the Deputy Magistrate finally lifted her bail condition until 25 October 2018.  The time spent for such a straight forward matter is simply astonishing.

C1.6  Prolixity of PW2’s cross-examination and disruptions

39.  PW2 prepared two statements dated 31 July and 11 September 2017.  He carried out traffic accident reconstruction exercise at the incident location for taking measurements, and analyzed the CCTV Footage.  His two statements mainly dealt with the speed of Taxi 1 at the time of impact and for the reasons that he gave, he opined that it was 49+/-5 kph.

40.  Mr Leung spent considerable time in cross-examining PW2 on the methodology that he adopted in analyzing the CCTV Footage.  The cross-examination, which lasted for 23 days, was unduly protracted.  It was further hindered by Mr Leung’s repeated attempts to exclude PW2’s evidence:

(1)  On Day 18, after his application for adjournment was refused, he applied to exclude PW2’s evidence other than speed.  When the Deputy Magistrate queried the timing of such application, he withdrew.

(2)  On Day 24, the Deputy Magistrate invited Mr Leung to remake the application, which he did.  In the course of his submissions, Mr Leung said that the application should be properly made during the half-time submission.  However, he carried on with it after the Deputy Magistrate commented on the costs implication if he did not do so.  In the end, after further exchanges, Mr Leung ceased to continue with the application and the case was adjourned to 23 October 2018.

(3)  On Day 28, the Deputy Magistrate again invited Mr Leung to make his application to exclude PW2’s evidence other than on Taxi 1’s speed.  The submissions lasted until Day 30 when the application was refused.

(4)  On Day 34, Mr Leung applied to exclude PW2’s evidence relating to optical effects concerning the blurring images of a moving object captured by the CCTV Footage on the ground of lack of expertise.  However, it baffles us to see that he only did so after spending 6 days cross-examining PW2 on exactly the same subject matter.

41.  The timing of the repeated applications to exclude PW2’s evidence was disruptive.  The time spent was wholly disproportionate when at the end the Deputy Magistrate ruled against it on the simple ground that it was a matter of weight rather than admissibility.

C1.7  Prolixity of PW3’s cross-examination

42.  PW3’s evidence was supposed to be non-contentious but Mr Leung cross-examined him for 3 days, asking questions on a wide range of irrelevant matters, such as how he assisted PW2 during the reconstruction exercise.  It is yet another ready example of how Mr Leung had failed in his duty to avoid repetition, prolixity and the waste of time.

C2.    Ruling of a case to answer

43.  On Day 40, the Deputy Magistrate ruled that there was a case to answer.  But unbeknown to the parties, she in fact took the view that Mr Leung had been able to elicit sufficient evidence for acquittal from PW2 on Day 3 when he accepted that there was a possibility that Taxi 1 had crossed the centre dividing line when it hit the defendant. She only revealed her view when she ordered wasted costs against Mr Leung in support of her finding that he had wasted the court’s time.

44.  If, as the Deputy Magistrate considered, PW2’s evidence had so significantly weakened the prosecution case, she probably should have stopped the case after canvassing with the parties.  Or she could have at least made her view known to the parties so that the prosecution could decide whether to proceed further and the defence could decide if it was still necessary to labour on PW2’s evidence and to call extensive evidence in the defence case.  Had she done either of the above, the trial would have most probably come to an end on Day 3; and all the subsequent wastage of time and resources could have been avoided.  By not doing so, the Deputy Magistrate had singularly failed to bring the case to a just conclusion expeditiously.

C3.    Days 41 to 44

45.  On Day 40, after the Deputy Magistrate ruled that there was a case to answer, the defence case commenced with a voir dire to determine the expertise of the defendant’s expert, a mechanical engineer who had conducted a traffic accident reconstruction exercise (DW1).  The trial was then interrupted between Days 41 and 44.

46.  On Day 41, Mr Leung did not appear.  The defendant was also absent.  Mr How informed the Deputy Magistrate that the defendant had terminated Mr Leung’s representation.  He also produced a sick leave certificate covering 7 and 8 January 2019 to explain Mr Leung’s absence.  He applied to take over the conduct of the defence.  What followed was a lengthy discussion which went into the afternoon.  At about 3 pm, the Deputy Magistrate adjourned the case to the following day and directed Mr Leung and the defendant to appear.

47.  On Day 42, the defendant appeared but not Mr Leung.  Mr How continued with his application to take over the defence.  The Deputy Magistrate said she was concerned about the circumstances surrounding the defendant’s legal representation and explained to the defendant the 5 options that she had for legal representation.  At the end of the hearing at about 3:40 pm, she adjourned the case to the following day for the defendant to make a decision on legal representation and ordered Mr Leung to appear.

48.  On Day 43, Mr Leung was still absent.  Mr How continued with his application to take over the defence. At the end of the hearing at about 3 pm, the Deputy Magistrate adjourned the case to 31 January 2019 to give the prosecution an opportunity to reply.  She however did not ask the defendant for her decision on legal representation.

49.  On Day 44, Mr How made further submissions.  The defendant confirmed that she had terminated Mr Leung’s representation and decided to be represented by Mr How.  The Deputy Magistrate then discharged Mr Leung.  Before she continued with the trial, she ordered that a warrant of arrest be issued against Mr Leung as a defendant “concerning a case concerning section 99 of the Magistrates Ordinance” because of his absence since 2 January.[17]

50.  This entire episode was a complete waste of time.  Any question about the defendant’s legal representation could have been resolved within minutes on Day 41.  We can see no reason why the Deputy Magistrate had  taken the course that she did when the defendant was legally represented by HC.  If need be, she could have stood the matter down for the defendant to turn up shortly to confirm her decision. Instead, more than 3 days had been squandered.

51.  Another matter that we find disturbing is the Deputy Magistrate’s decision to issue a warrant of arrest against Mr Leung purportedly under section 99.  Granted that as a matter of good practice and courtesy, Mr Leung ought to have appeared on Day 41 to inform the Deputy Magistrate that he had been discharged and sought her indulgence.  But his absence does not fall within section 99, which deals with contempt in the face of the court.  The Deputy Magistrate simply had no basis to issue the warrant of arrest.

52.  We also have difficulties with Mr Leung’s conduct.  According to the sick leave certificate produced by Mr How, Mr Leung was supposedly on sick leave on 7 and 8 January. That was one of the reasons advanced by Mr How for his absence.  However, as pointed out by Mr Ira Lui, ADPP,[18] Mr Leung in fact on 8 January appeared as counsel at the hearing before the Court of First Instance in HCA 739/2016.[19]  We asked Mr Leung for an explanation and he said that he had already accepted a brief to appear and did not know that his attendance before the Deputy Magistrate on 8 January was required.  We did not probe into the matter at the hearing in order not to prejudice Mr Leung’s position because we think the Bar Association should consider if any disciplinary issue is involved in his conduct.

C4.    Days 44 to 91

C4.1  Disrespectful language used by Mr How

53.  After Mr How had taken over the conduct of the defence, there was not any change in the tension and animosity between the Deputy Magistrate and the defendant’s legal representatives. The wastage of valuable court time and resources continued as before.  The use of inappropriate language and veiled taunts by Mr How was equally bad.  The following are some telling examples:

(1)  On Day 58, during the evidence of the defendant, Mr How said, “… what a great team your Worship and Mr Kwan appear to be when you, like, having each other’s back, …”.  Mr How also suggested that the Deputy Magistrate was wasting everybody’s time by raising the matter of Mr How’s pointing his finger at the defendant and he repeatedly questioned the Deputy Magistrate whether such was an offence.  At one stage, when the Deputy Magistrate said she did not understand the logic of Mr How’s submission, Mr How said, “… Is it a statement about your ignorance of the logic …”.

(2)  On Days 63 and 64, while making the 2^nd Recusal Application, Mr How pressed the Deputy Magistrate for a reply as to whether she had received a copy of the writ of the DC Action[20] to which the Deputy Magistrate replied that she was not in Hong Kong.  But Mr How insisted that the Deputy Magistrate should give an answer, saying that “I have an original sealed copy right in front of me… I believe a lot of journalist has obtained a copy of this document” and that “I would trust that your Worship would act sensibly to preserve the confidence of administration of justice by recusing yourself on your motion …”.

(3)  Also on Day 64, on the question of the termination of Mr Leung’s service, Mr How repeatedly interrupted the Deputy Magistrate, asking “Are you giving evidence?” and retorted at the end that “You can read … her mind now? Suddenly, your Worship not only can read Miss Thapa Kamala’s mind, you proceed to give evidence in this court, the same thing that you’re accusing me of whenever it doesn’t suit you?”

(4)  On Day 76, in the course of DW5’s evidence, the following exchange took place:

“Court: …

Mr How: Thank you for repeating what you have said. Thank you.

Court: You said you will keep silent. You just breach what you have said.

Mr How: Until the time is so criminally wasted.”

54.  The language used by Mr How is, to say the very least, highly impertinent, and would no doubt demean the court proceedings.  They are serious enough for the Law Society to look into as a question of professional conduct.

C4.2  Ruling on DW1’s expertise

55.  On Day 44, Mr Kwan continued with the cross-examination of DW1 and took 6 days to finish. Re-examination and submissions took the case to Day 51.  In the morning on Day 52, the Deputy Magistrate gave a ruling refusing to accept DW1 as an expert on the ground that he lacked formal training in traffic accident reconstruction and that he repeatedly demonstrated the lack of a clear mind in his testimony. Mr How applied for a review which took another day when the Deputy Magistrate refused it on Day 53.

56.  We fail to see why Mr Kwan would need 6 days of cross-examination to establish the simple point that DW1 lacked the requisite expertise.  His cross-examination of DW1 was in any event protracted and covered many irrelevant matters, such as his evidence given in other civil proceedings.  Moreover, contrary to what the Deputy Magistrate had thought, the clarity or otherwise of DW1’s mind did not go to his expertise.  The time spent on this aspect is wholly unnecessary.

57.  In the course of the review, the Deputy Magistrate used the term “good boy” to describe Mr How, to which he took exception.[21] The use of the term “good boy” by the Deputy Magistrate was unjudicial.  She should not have addressed Mr How in such a patronizing way, no matter how difficult or discourteous he might have been.  It only fueled the bickering already going on between them.

C4.3  Prolixity of the defendant’s evidence

58.  The defendant began her evidence on Day 53. Her examination-in-chief lasted for 4 days until Day 57. She testified that she was on the southbound lane when she was hit by Taxi 1 and that she had never reached the centre line.  Cross-examination of the defendant spanned the next 3 days until Day 60.  She admitted knowing that there was a pedestrian crossing facility nearby but she had never used it.  She agreed that she was hit by Taxi 1 on the southbound lane but in the re-examination said that she was hit at the centre line.  The defendant’s evidence was exceptionally long because of the prolixity of questions and interruptions by discussions and submissions at different stages.

59.  The defence case continued with the evidence of the Nepalese interpreter when the defendant’s cautioned statement was taken (DW3), a land surveyor (DW4), a traffic accident reconstruction expert (DW5) and the maker of the documents shown to PW2 to produce those documents (DW6).  Disruptions also continued.

C4.4  The 2^nd Recusal Application

60.  DW3 gave evidence on the accuracy of the translation of the defendant’s cautioned statement.  His evidence was short.  It started and finished within an hour in the afternoon of Day 61. On Day 62, Mr How made an application to admit a computer certificate under section 22A of the Evidence Ordinance.[22] It took up the whole of the morning.  The Deputy Magistrate then adjourned the case to 12 April 2019 (Day 63).  The reason why she did not continue the case in the afternoon is not apparent from the record.

61.  In the meantime, the Deputy Magistrate’s decision to impose bail on the defendant was quashed on 4 April 2019.  The defendant commenced DCCJ 1719/2019 in the District Court against the Deputy Magistrate for damages under sections 125 and 126 of the Magistrates Ordinance (“DC Action”).  On Day 63, the defendant mounted a second recusal application based heavily on the DC Action (“the 2^nd Recusal Application”).  Mr Kwan’s position was ambiguous.  Submissions lasted until Day 68 and on Day 69, the Deputy Magistrate refused the Application as well as the application under the Evidence Ordinance.

62.  The 2^nd Recusal Application caused further disruption.  The time taken was unduly long partly because in his submissions, Mr How insisted on playing the DARTS recording in full for the Deputy Magistrate’s explanation to the defendant on her options regarding legal representation, which was wholly unnecessary.

C4.5  DW4 and DW5

63.  After the Deputy Magistrate ruled against DW1’s expertise rendering his expert evidence inadmissible, the defendant called two experts, DW4 and DW5, to make good her case on the location where she was hit by Taxi 1.

64.  DW4 gave evidence on the angle of drop of the CCTV camera of the American Club to the centre line of Tai Tam Road based on a land survey conducted on 26 October 2018, that is, 2 years after the accident, with his expert report dated 3 June 2019.  His evidence took 3 days to finish (Day 70 to Day 72).

65.  On Day 72, the defence served on the prosecution the expert report of DW5 dated 9 June 2016.  The defence case is that whether or not Taxi 1 crossed the centre line could be ascertained from expert analysis of the CCTV Footage by DW5.  The prosecution applied for an adjournment to consider DW5’s expertise.  The Deputy Magistrate allowed the application and adjourned the case to 14 June 2019 (Day 73).  On Day 73, DW5 began his evidence without any objection to his expertise. According to him, it was reasonably likely that the collision occurred on the centre line or slightly on the eastern side of the centre line, with Taxi 1 at an angle of about 10 degrees to the centre line.  However, in response to the Deputy Magistrate’s questions, DW5 said that he could not rule out the possibility that Taxi 1 had not crossed or even touched the centre line.  His evidence was completed on Day 78.

66.  The calling of DW4 and DW5 inevitably prolonged the trial.  Their evidence was protracted but its utility was minimal.  The Deputy Magistrate did not refer to DW4’s evidence in her verdict.   DW5’s evidence did not really assist the defence when he could not rule out the possibility that Taxi 1 had not crossed the centre line.  It effectively means most of the time on Days 70 to 78 was wasted.

67.  To make the matter worse, there were more disruptions causing considerable wastage of time when DW6 gave evidence.

C4.6  DW6

68.  The prosecution objected to DW6’s evidence on the ground that it would be inadmissible hearsay.  Arguments ensued and lasted for almost 3 days until Day 80 when the Deputy Magistrate allowed him to give evidence.  The Deputy Magistrate then adjourned the case as DW6 was sick.  He did not appear on Day 81.  On Day 82, he commenced his evidence and continued on Day 83.  At the end of that day, the Deputy Magistrate adjourned the case to 3 July 2019 (Day 84), despite the indication by the defence that DW6 would be on an overseas business trip.  On Day 84, DW6 was absent and the defence applied to withdraw his evidence.  That application lasted until Day 87 when it was refused.  On Day 88, the Deputy Magistrate ordered the defence to call DW6 to continue and complete his evidence.  On Day 89, the defence successfully applied for an adjournment for applying for judicial review of her decision. On 16 August 2019, in the judicial review proceedings, Chow J quashed the Deputy Magistrate’s decision and directed her to proceed with the trial and reach a decision without further delay.[23]

69.  Days 80 to 89 were wasted.

C5.    Day 91

70.  Eventually on Day 91, the Deputy Magistrate delivered the verdict.  In acquitting the defendant, the Deputy Magistrate did not find either PW1 or the defendant credible.  Noting that PW2 could not rule out the possibility that Taxi 1 had crossed the centre line and collided with the defendant, she found that there was a lurking doubt in the prosecution case.

C6.    Conclusion

71.  In sum, we wish to say in the strongest possible way that the Deputy Magistrate had failed in her duty in properly managing the trial to bring it to a just and speedy conclusion; and that the defence and, to a lesser extent, the prosecution, had also failed in their duty to assist the Deputy Magistrate in reaching that goal and standard.

72.  Mr Lui submits that the Department of Justice had kept the progress of the case under constant review. The views of the two counsel on fiat were sought and considered by senior officers of the Department.  It was concluded that the case against the defendant should be proceeded with.  In particular, the prosecution was concerned that in mounting recusal applications, the defence was in fact forum shopping. However, this is not a legitimate concern in the special circumstances of this case when, as will be seen shortly, it is an obvious one of apparent bias.

73.  Mr Lui fairly accepts that, with the benefit of hindsight, the public interest might have been better served by the discontinuation of the prosecution.  He however emphasizes that the conduct of the defence remained wholly unacceptable and unconducive to the administration of justice.  We agree.

74.  In justifying the conduct of the defence, Mr Leung submits that it was vital for the defendant to get an acquittal so as not to prejudice her claim in the HCPI Action.  It is because if she were convicted, she would be taken to have committed the offence of negligently endangering herself as a pedestrian, unless the contrary was proved under section 62 of the Evidence Ordinance.  We disagree.  On the defendant’s own case, she crossed the road at the rear of Taxi 2 without using the pedestrian facility nearby.  Contributory negligence on her part will most likely be a live issue to be resolved by countervailing evidence.  In such circumstances, even if she has the burden of proof because of a conviction, the burden is practically an assessment of the parties’ relative credibility and cogency of evidence/inferences: Clerk & Lindsell on Torts, 21^st Edition, §16-33 at p1197.  In practical terms, the burden of proof will not make her position worse.  In any event, even if Mr Leung’s concern is legitimate, it does not begin to justify his or Mr How’s conduct of the defence and their gross failure in assisting the Deputy Magistrate in properly managing the trial to bring it to a just and speedy conclusion.

75.  It is distasteful for this Court to have to criticize the Deputy Magistrate and the legal representatives at the trial stage but we would be failing our duty to the public interest in the administration of justice if we did not do so.

D.      The costs applications

76.  We now turn to the costs applications.

D1.    The Deputy Magistrate’s ruling

77.  In refusing the defendant’s application for costs, the Deputy Magistrate found that the defendant had brought suspicion upon herself by not using the pedestrian facility nearby and crossing the road behind Taxi 2.

78.  In ordering wasted costs against Mr Leung, she found, among other things, that he had improperly wasted the court time because on Day 3, he had already elicited from PW2 the possibility of Taxi 1 crossing the centre line, which was already sufficient for an acquittal, but he still engaged in extensive cross-examination of PW2. As to Mr How, the Deputy Magistrate found that, among other reasons, he had made numerous unmeritorious objections and repeatedly ignored the court’s rulings and directions.

79.  Relevantly, the Deputy Magistrate rejected the complaint by the defendant, Mr Leung and Mr How that she was biased. 

D2.    Apparent bias

80.  The test for apparent bias may be stated as follows:

“A particular judge is disqualified from sitting if the circumstances are such as would lead a reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the judge would be biased.”

See HKSAR v Md Emran Hossain (2016) 19 HKCFAR 679, [36], citing Deacons v White & Case LLP (2003) 6 HKCFAR 322, [21].

81.  In our view, having regard to what transpired in the entire proceedings, how the Deputy Magistrate conducted the trial, including the continuous bickering with Mr Leung and Mr How, the arguably wrongful decision to impose bail on the defendant, her baseless order to issue a warrant of arrest against Mr Leung, the fact that the defendant had in the course of the trial commenced the DC Action against her, the circumstances are obviously that a fair-minded and well-informed observer would conclude that there was a real possibility that the Deputy Magistrate would be biased.  Tainted by apparent bias, the Deputy Magistrate’s costs orders cannot stand.

E.      Disposals

82.  On the ground of apparent bias alone, and leaving the other grounds of appeal as they are, we set aside the costs orders made by the Deputy Magistrate and allow the two appeals.

83.  It remains for us to exercise our discretion afresh to determine the costs applications.

84.  It is well-established that, as a general rule, costs follow the event of an acquittal.  The general rule may, however, be departed from where there is a positive reason to do so, such as where the appellant’s own conduct has brought suspicion on himself.  See HKSAR v Pang Hung Fai (No. 2) (2015) 18 HKCFAR 1, at [3]-[4].

85.  In our view, by crossing the road behind the rear of Taxi 2 at that time of the night when she could have used a nearby pedestrian facility, the defendant had brought suspicion upon herself for the offence of endangering herself as a pedestrian. She is therefore not entitled to the costs of the trial despite the acquittal. Her application for costs is refused.

86.  As we have found, the Deputy Magistrate, the defence and, to a lesser extent, the prosecution were all responsible for the wastage of judicial time and resources.  Taking a holistic view of the matter, we do not consider it appropriate to visit Mr Leung and Mr How alone with costs.  We therefore refuse the prosecution’s application for wasted costs against them.

87.  That said, our decision on wasted costs is not and should not be seen as our approval of the conduct of the case by Mr Leung or Mr How.  On the contrary, their conduct warrants serious consideration by the Bar Association and the Law Society to see if any disciplinary action should be taken against them.  We will direct the Registrar of the High Court to refer the matter to the two professional bodies accordingly.

88.  We further make an order nisi that there shall be no order as to costs for the appeals.